Seal v. Giant Food, Inc.

• Decision Date: 01 September 1996
• Docket Number: No. 1309,1309
• Parties: Mary E. SEAL v. GIANT FOOD, INC., et al. ,
• Court: Court of Special Appeals of Maryland

Page 87

116 Md.App. 87

695 A.2d 597

Mary E. SEAL v. GIANT FOOD, INC., et al.

No. 1309, Sept. Term, 1996.

Court of Special Appeals of Maryland.

June 25, 1997.

Clifford B. Sobin (Berman, Sobin & Gross, on the brief), Gaithersburg, for Appellant.

George W. Elder and Joseph M. Jagielski, Baltimore, for Appellees.

Submitted before MOYLAN and SALMON, JJ., and PAUL E. ALPERT, J. (Retired, Specially Assigned).

SALMON, Judge.

The main issue presented in this case is whether the petition to reopen the claim filed by Mary Seal, appellant, is barred by the five-year statute of limitations set forth in section 9-736(b)(3) of the Labor and Employment Article ("LE") of the Maryland Code Annotated (1991 Repl.Vol.). ¹ LE § 9-736 reads, in pertinent part:

(b) Continuing powers and jurisdiction; modification.--(1) The Commission has continuing powers and jurisdiction over each claim under this title.

(2) Subject to paragraph (3) of this subsection, the Commission may modify any finding or order as the Commission considers justified.

(3) Except as provided in subsection (c) of this section, the Commission may not modify an award unless the modification is applied for within 5 years after the last compensation payment.

(c) Estoppel; fraud.--(1) If it is established that a party failed to file an application for modification of an award because of fraud or facts and circumstances amounting to an estoppel, the party shall apply for modification of an award within 1 year after:

(i) the date of discovery of the fraud; or

(ii) the date when the facts and circumstances amounting to an estoppel ceased to operate.

(2) Failure to file an application for modification in accordance with paragraph (1) of this subsection bars modification under this title.

FACTS

On February 16, 1983, while working as a cashier for Giant Food, Inc. ("Giant"), Mary Seal sustained an accidental injury resulting in carpal tunnel syndrome. She made a claim for her injury with the Workers' Compensation Commission, which awarded her certain temporary total and temporary partial benefits. Additionally, on July 16, 1986, the Commission awarded Ms. Seal permanent partial disability under "other cases" amounting to "40 percent industrial loss of use of the body as a result of bilateral carpal tunnel syndrome (right hand, left hand, and right elbow) at the rate of $98 per week, with payments to begin (retroactively) on January 5, 1986, for a period of two hundred weeks." The two-hundred week period was reduced to 165 weeks at $98 per week, due to deductions for attorney's fees and other expenses. ²

Shortly after the Commission's order, a Claim Representative for Aetna Casualty & Surety Company ("Aetna"), who was Giant's insurer, sent a letter to Ms. Seal's attorney stating that a monthly check in the amount of $392 ($98 X 4) would be paid directly to the claimant. Counsel to Ms. Seal voiced no objection to this method of payment. Because a year has 52 weeks, paying at the monthly rate of $392 ($98 X 4) would under-pay Ms. Seal by $392 each year. Accordingly, the insurer made up this underpayment by sending Ms. Seal one additional $392 check in July of 1987 and another in July of 1988. The insurer paid Ms. Seal monthly as promised, with the last payment being made on February 14, 1989. If Aetna had paid $98 per week for 165 weeks from January 5, 1986, the last check would have been due on March 10, 1989, rather than February 14, 1989.

Ms. Seal paid a visit to her treating doctor, Raymond D. Drapkin, M.D., on January 7, 1994. Dr. Drapkin observed that she continued to have a problem with her left elbow stemming from the 1983 accident at Giant. Due to the problem noted by Dr. Drapkin, Ms. Seal, on February 25, 1994, filed a petition to reopen her claim.

Giant and Aetna (appellees), in response to Ms. Seal's petition, raised the statute of limitations set forth in LE § 9-736(b)(3) as a defense. Appellees asserted that Ms. Seal's petition was filed more than five years after the last compensation payment. A hearing was held on August 1, 1994, before Commissioner Thomas P. O'Reilly. Commissioner O'Reilly denied the petition to reopen on the ground that it was barred by the statute of limitations. Ms. Seal appealed the decision to the Circuit Court for Anne Arundel County, whereupon Giant and Aetna filed a motion for summary judgment based again on the statute of limitations. Ms. Seal filed an opposition to that motion, together with a cross-motion for summary judgment. Circuit Court Judge Elsbeth Bothe granted the motion for summary judgment filed by Aetna and Giant and denied appellant's cross-motion.

ANALYSIS

No one disputes that appellant filed her petition to reopen more than five years after the last date compensation was paid. Appellant points out, however, that appellees, by paying workers' compensation benefits on a monthly rather than weekly basis, paid Ms. Seal her permanent partial disability award twenty-four days too early and that, if appellees had paid benefits on a weekly basis as ordered, the last payment would have been made on March 10, and her petition to reopen on February 25, 1994, would have been timely.

Appellant points out that:

A basic rule of Compensation law in Maryland is that workers' rights or benefits may not be eliminated, modified or reduced without the explicit permission of the Workers' Compensation Commission. In the general provisions of the Act, found in Subtitle 1, the [L]egislature makes explicit this intent:

LE § 9-104(a): Exemption from duty; waiver of right.--

(1) Except as otherwise provided in this title, a covered employee or an employer of a covered employee may not by agreement, rule, or regulation:

(i) exempt the covered employee or the employer from a duty of the covered employee or the employer under this title; or

(ii) waive a right of the covered employee or the employer under this title. (2) An agreement, rule, or regulation that violates paragraph (1) of this subsection is void to the extent of the violation.

(Emphasis added.)

Appellant goes on to note that LE § 9-729, which governs requests by claimants for "lump sum" awards, provides that all such awards must be approved by the Commission. Appellant argues that appellees, by paying her twenty-four days early, impermissibly made a "lump sum" payment without the Commission's approval. Appellant posits that her tacit waiver of the right to be paid on a weekly basis is "void" under LE § 9-104(a)(2) and thus the time to file her motion to reopen was extended by twenty-four days.

It is true, as appellant points out, that the Commission did not give appellees the right to pay the claims monthly rather than weekly. Appellant is further correct when she characterizes the last payment as a "lump-sum" payment. Sections 9-729 and 9-730 govern when an award of compensation may be converted in whole or in part to a lump sum. Both sections require the permission of the Commission before any lump-sum payment may be made.

Paying a party monthly rather than weekly may lead, as here, to payments slightly in advance of the due date; it can lead, however, to the employer/insurer being slightly in arrears in payment. Apparently, the Commission tolerates at least some deviation on the part of workers' compensation carriers from the strict terms of Commission orders. In Richard P. Gilbert & Robert L. Humpreys, Jr., Maryland Workers' Compensation Handbook 155 n. 98 (1988), it is stated:

[N]otwithstanding the use of the term "weekly," insurance carriers often pay benefits every two weeks. The Commission never formally has found fault with that practice.

The fact that the tacit agreement between appellant and appellee [to pay the compensation award monthly rather than weekly] is void does not help appellant. If we were to consider the agreement void and we were to pretend that there was no agreement to pay monthly, the fact would still remain that the last payment was made to Ms. Seal more than five years prior to the filing of the petition to reopen.

In 3 Larson's Workmen's Compensation Law, § 81.22(e), at 15-971 to 15-972 (1989), the pertinent statute of limitations rule is stated as follows:

When the time of last payment of compensation is specifically identified by the statute as the key date [for reopening of an award], it controls without regard to the time or circumstances of the award. Thus, it is decisive even if the award comes later, or if the award was invalid, or if there was no award but only voluntary payment.

(Footnotes omitted.) Appellant has referred us to no case, and we have found none, creating an exception to that rule.

In the case of Chanticleer Skyline Room v. Greer, 19 Md.App. 100, 107, 309 A.2d 638 (1973), aff'd, 271 Md. 693, 319 A.2d 802 (1974), we scrutinized article 101, section 40(c), of the Maryland Annotated Code (1957, 1964 Repl.Vol. & Supp.1973), which was substantively identical to LE § 9-736(b). In Greer, the claimant received, in August 1966, the last payment from a 30 percent permanent disability compensation award. Id. at 102, 309 A.2d 638. In 1966, the Commission awarded the claimant attorney's fees in the amount of $500, but the fee was not paid until 1970. Id. at 101-02, 309 A.2d 638. Claimant, on October 1, 1971, filed a petition to reopen. The Court held that payments of attorney's fees were "compensation" within the meaning of the statute, and because the last payment of compensation was made in 1970, the petition to reopen was timely. In reaching this conclusion we stated:

Under § 40(c) the period of limitations starts to run on the date that the last payment of compensation is made, rather than on the date such payment becomes due. Adkins v. Weisner, 238 Md. 411, 414 (1965); Power [Porter] v. Beth.-Fair. Shipyard, 188 Md. 668, 675 (1947). Here the counsel fee was paid on 15 June 1970. It is that date which governs, rather than the date such payment became due under either the 23 February 1966 award or the...